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Fall 2012 Wills, Trusts, and Estates FINAL Outline for Akilah N.

Wealth Transfer upon Death: The Fundamentals
I. Introduction
A. Economics of Inheritance (Cant use Ks b/c they need consideration & Wills are gratuitous transfers)
1. Freedom of Testation: protects volition (Will) of T. Permits T to do w/e they want w/ their assets.
B. Definitions (testate, intestate, executor, administrator, probate v. non-probate prop, Trust, causa mortis) (Ante-mortem prob: living probate)
1. (1) Next-of-Kin deals w/ distrib of personal prop. (2) Heirs deals w/ distrib of real prop. (3) Non-claim statues protect estate from creditors in future; must
go through probate to have this protection. (4) Donative Intent (Volition not enough, must conform to distributional scheme) Strict Formalism vs. Broader
C. Wescott (46): UPSHOT: Letter not considered Will/Holographic Will unless conforms to statutory reqs, has testamentary intent, & capacity.
D. Dead Hand Shapira (74): Sons limited to marry Jewish girls w/ 2 Jewish rents, w/in 7yrs of death. UPSHOT: Rable restraints, by Will, are permissible, as
long as, it doesnt promote destruction of prop & be limited constraint [Rest.(2d) of Prop.]
E. Transfer of Ts Estate Probate Process: (1) Probate Functions; (2) Jurisd; (3) Letters of Testamentary or Letters of Administration; & (4) Statute of Limitations
(SOL) -- (a) Notice & (b) Contests.
1. Forms of Probate: (1) Can give notice, which tells ppl some1 has died; can also administer probate & notify ppl later; (2) Can contest
Administrator/Executor, if wouldnt be good fit for position.
2. 4 Functions of Probate: (1) Collect of Assets; (2) Notify & Pay Creditors; (3) Pay estate tax; & (4) Title clearing & distrib
3. Probate Prop wasnt designated to go to some1 & need to figure out who will go to. Mainly if provision fails (& no residuary).
I Wills: Testamentary Capacity
A. In order for Will to be ValidGeneral Reqs (1) Testamentary Capacity; (2) Testamentary Intent; & (3) Due Execution (needs to be written & signed in specific
ways for Written & Holographic Wills).
1. Testamentary Capacity turns on mental capacity & that turns on age, etc. Can have Capacity, but not Intent.
2. Testamentary Capacity in Context: intent reqs capacity (but not other way around [regarding doc]).
3. How to Establish Testamentary Capacity Mental Capacity (UPC 2-501): (1) 18yrs old & (2) of Sound Mind 4 Part Test
a. Turns on Sound Mind Req 4 Part Test (from Rest.): (1) Nature & Extent of Prop; (2) Natural Objects of Bounty (know who is getting it); (3)
Disposition being made (know what giving); & (4) Understands Overall Distributional Plan (know whats going on).
B. Grounds for Will Contest: Mental Capacity
1. Mental Capacity: Reqs are in UPC 2-501 (Note: unreasonable natural disposition is often trigger or relevant factor w/ each of these)
a. Washburn (97): T made 3 Wills. Niece argues T lacked capacity, since no Mental Capacity (W/ each change her take decreased)
i. UPSHOT: Theres rebuttable presumption that T is sane & must be disproven by challenger.
b. Wilson (05): Wilson challenged Will provided by Lane, who was caretaker. UPSHOT: T may be deemed crazy, but can produce valid Will, during
lucid integral. Capacity at time of execution is what matters.
c. Mental Capacity in Context (Determines testamentary capacity) Not same as general insanity/medically determined incapacity.
i. Capacity in continuumtiming is key. Can be admitted to insane asylum & still have capacity to write Will.
ii. Dont have to be normal or have above average or even average intelligence.
d. Insane Delusion (ID): defect of mental capacity; false conception of reality held against reason & causation.
i. Can have Mental Capacity (satisfying 4 part test & being >18yrs), but have [defect due to] ID.
ii. If delusional may not have mental capacity at all. ID turns not on whether its right/wrong but whether belief w/ regard to delusion was rational.
Only if ID affects how prop is distributed does it negate capacity.

e. Strittmater (47): Will provided that whole estate would go to NWP. Cousins contested Will based on ID. UPSHOT: ID must materially effect Will
(req more connection to causation), but in Jurisd like NY, might effect Will (Honingman), can void it.
f. Breeden (00): T (substance abuser) made holographic Will. Cut out family. Gave everything to friend. Told family get nothing. Prior will left nothing to
them. Ct said had mental capacity (even if under influence of drugs, no ID). Family said hes crazy.
i. Ct discussed 2 tests (UPSHOT): (1) Cunningham Test (Cunningham [1953]): Mental capacity to make will reqs that: (1) T understands nature of
act; (2) knows extent of prop; (3) understands proposed testamentary disposition; (4) knows natural object of bounty; & (5) Will represents wishes.
; (2) ID Test: person whos suffering from ID at time executed Will may lack testamentary capacity. ID defined as persistent belief in that which
has no existence in fact, & which is adhered to against all evidence (In re Coles Estate [1924]).
2. Undue Influence (UI) Rest(3d) of Prop 8.3(b): donative transfer is procured by UI if wrongdoer exerted such influence over donor that it overcame
donors free will & caused donor to make donative transfer that donor wouldnt otherwise have made(1) Confidential relship & (2) suspicious
circumstances. [statement doesnt have to be false, free will lost, complete Will invalid]
a. UI Factors: (1) Susceptibility (T susceptible to domination of other; weak-minded or weak-willed); (2) Opportunity/Influence (person had opp to
exercise power); (3) Disposition/Motive (show intent of person); (4) Causation (show natural result of influence).
b. Lakotosh (94): Rose (70 old & easily distracted) friends w/ Roger; helped her. Made him POA. Lawyer drafted Will is Rogers 2 nd Cousin. Ct.
imposed constructive trust, since UI couldnt be proved. UPSHOT: UI can be found through 4 factors (See above).
i. (1) Party contesting must demonstrate 4 UI Factors & (2) Once shown, proponent must rebut presumption, w/ C&CE.
c. Lipper (63): T cut out grandkids of dead son & they contest Will based on UI by living son. No-contest clause (challenge Will=forfeit their part)
UPSHOT: UI can be rebutted by explicit proof in Will or verbal announcements of T, even if unnatural disposition.
d. Moses (69): Mutilated woman dates younger atty, leaves him everything. Older sister contested Will. (Wills Atty had no connection to b/f)
i. UPSHOT: Meaningfulness of independent advice by counsel will be taken into consideration for UI issues.
e. Kaufmann (65): T wealthy, relship w/ Weiss (manage T finances), & live together. Bro sought to set aside Will b/c of UI. 2 juries found UI.
i. UPSHOT: EE can be used to prove UI, beyond UI factors.
f. Fraud: claim not brought as much, but is w/ UI claims; Tort claim; can get damages or monetary remedies; not in probate proceeding.
g. Fraud (in testamentary context): (1) Deception (implicit reliance by T); (2) Misrepresentation (statement must be false); (3) Intent (to deceive); (4)
Purpose & Effect of influencing T (causation). [Statement must be false, no burden shifting step]
h. Fraudulent provision can be struck & rest be upheld. But, if cant be separated then whole Will invalid.
i. Const trust is equitable remedy. Reqs bene under Will to hold asset or turn asset over to some1 & prevent unjust enrichment.
a. 2 Types of Fraud: (1) Fraud in Inducement (inducing T to draft will-lie to get T to change or evoke or revoke Will); (2) Fraud in Execution
(misrepresent contents of Will/doc & get T to sign it)
j. Puckett (94): T hire 2 nurse. Isolate & induce her into changing (1 was POA). UPSHOT: Fraud can be proven by 4 factors (above).
k. Problem [Brazil (19)]: Introduces constructive trust; Will was supposed to be destroyed & kids take through intestacy.
l. HYPOS: (1) Ts W1 everything to Jean. Ts W2 2 days b4 death; everything to Carol b/c she said Jean is dead (Fraud: Prove Jean is alive; prove T
relied on statement; Carol wanted money); (2) Evidence showed T executed Will b/c thought Jean was dead or knew that Jean didnt want to visit her
(No fraud b/c purpose element is missing); (3) Jean prevails & W2 is procured by Fraud. (W1 cant be probated b/c W1 revoked; W2 cant be b/c
fraudulent; Estate will pass through intestacy. Ct has option, in equity, to impose constructive trust; especially if Carol is next-of-kin. Jean can sue Carol
for tortuous interference w/ expectancy, if Jean wasnt heir or next-of-kin or some1 wouldve taken under Will but for fraudulent inducement)
3. Duress Rest.(3d) on Duress: Donative transfer is procured by duress if wrongdoer threatened to perform or did perform wrongful act that coerced donor
into making donative transfer that donor wouldnt otherwise have made.
a. Latham (1949): Cult Case- left estate to cult, wanted to change it but couldnt b/c threatened. Cousins - no standing.
i. Const. Trust extended beyond Fraud. Now used to prevent unjust enrichment & remedy perceived injustice.
ii. UPSHOT: If 3rd Party influence is proven, constructive trust can be implemented as remedy.
1. Interference (Tortuous Interference w/ Expectancy) Rest.(2d) recognizes this, but some jurisds dont To prevail, P must show interference was tortuous
in some way. Tort involving fraud, UI, or duress. Can only be used to remedy losses from tortuous act. Cant be used as remedy for Ts mental capacity or ID
issues. Elements for Tortuous Interference: (1) existence of expectancy; (2) intentional interference w/ expectancy through tortuous conduct; (3)
causation; & (4) damages.
b. Schilling (2007): Intentional Interference w/ expectancy needs underlying wrong/tort (get damages & punitive damages).
i. UPSHOT: If 3rd party prevents descendent from doing probate remedies (exhaust), then they can sue for intentional interference.
I Wills: Execution Formalities
A. Attested Wills (Publication: Ts declaration that instrument is their Will; assures that T knows what theyre signing)
1. Req of Due Execution Proceeding w/ Will Execution: (1) Select Proper Witnesses; (2) Approach T (signs in front of witnesses) (3) Back to witnesses
(sign). Witnesses must be disinterested. Most jurisds req 2 witnesses; Louisiana wants 2 witnesses & notary.
a. Include attestation clause, which applies to witnesses. Helps affirm Wills validity.
b. Keep in mind: (1) What reqs does statute impose?; (2) How should Wills be executed?; & (3) How should we treat Wills that dont comply w/ all
statutory formalities?
2. Sources/Influences on Modern Law of Wills, Trusts, & Estates
a. Ancient Law: Statute of Uses (1536); Statute of Wills (1540); Statute of Frauds (1677): Writing, Signature, Attestation & subscrip by 3 witness; Wills
Act (1837): Writing, Subscription, Attestation & subscription by 2 witnesses (at same time).
b. American Law: UPC: 90: Writing, Sig; Attestation & subscrip by 2 witness (not at same time but must ack Ts sig) w/in rble time; 08: Writing, Sig;
Attestation & subscrip by 2 witness OR notarize; Rest.(2d) Prop. (Donative Transfers); Rest.(2d) of Trusts
3. Purposes of Will Formalities: (1) Ritual Functions (Follow same steps as every1 else. Ceremonial to impress seriousness); (2) Evidentiary Functions
(proves validity; ppl will attest to what happened); (3) Protective Functions (prevents fraud; safeguard & protects Ts intent); (4) Channeling Functions
(assures T; permits uniform process for every1 to follow) Note: Keep in mind How does reqs execution formalities serve each of these functions?
4. Groffman (69): Wife contests b/c Ts sig & witnesses sigs not properly witnessed. UPSHOT: 2 witnesses must see T sign or ack at same time; they must
sign in presence of T (not necessarily at same time). (See Wills Act)
5. Casdorph (98): UPSHOT: Same as Groffman case AND witnesses must sign in front of each other.
6. UPC 2-502 (90): Except as provided in sub(b) & in 2-503, 2-506, & 2-513, Will must be: (1) in writing; (2) signed by T or in Ts name by individual in
Ts conscious presence & by Ts direction; & (3) signed by 2+ individuals, each of whom signed w/in rable time after he/she witnessed either signing of
Will described in (2) or Ts ack. of that sig or ack. of Will. (08 Update - no witness, just notarize)
a. UPSHOT: Same as Groffman, but witnesses dont have to sign in front of T or each other (w/in rable time)
7. NY EPTL 3-2.1: (1) Will must be signed by T (or (a) direct another to do so in his/her presence & (b) have person sign his/her own name. Person cant also
witness); (2) Will must be signed or ack in presence of each witness; (3) Will must be published; (4) Witnesses must sign w/in 30 days of each other &
during life of T; (5) T need not be present when witnesses sign; (6) Witnesses dont have to be present at same time.
8. Meaning of Presence in Will Execution
a. Line of Sight: T doesnt actually have to see witnesses sign but must be able to see them were T to look.
b. Conscious Presence Test: witness is in presence of T if T, through general consciousness of events, comprehends, that witness is in act of signing. See
UPC 2-502.
c. Telephonic witnessing is okay under UPC, but not under Wills Act. AND its not okay for T.
d. HYPO: Drive Up to Bank Wills Act its not okay, but under UPC its okay.
9. Meaning of Sig in Will Execution - Wills signed w/ X is valid if T is: (1) too weak to sign, or (2) illiterate.
a. Wills signed w/ help is fine. (NOTE: Be careful w/ helping T sign). Most jurisds req sigs.
10. Order of Events: (1) T must sign or ack sig b4 attestation period begins & ack b4 others sign; (2) T must sign at bottom (if add something b4 sign & still
sign above it; not struck, unless its related to disposition.)
11. Attestation Clause: No state reqs this, but is necessary b/c it confirms Ts intent. Speaks to present frame of mind of witnesses & prima facie evid of T sig.
Shows that presence, ack T & their sig, & then signs. Evidence that will is valid, duly executed.
12. Self-Proving Affidavit: Acts as sworn testimony; says T & witnesses signed in front of notary. Conclusive evidence that Will is valid as to execution.
Attestation clause alone doesnt prove witnesses signed Will. (UPC 2-504) 1-Step Aff: UPC 2-504(a) authorizes combined attestation clause & self-
proving aff (1 doc); so that T & witnesses (& notary) sign their names only once; 1-step self-proving aff. Careful wording; 2-Step Aff: UPC 2-504(b)
authorizes separate self-proving aff to be affixed to Will already signed & attested.
13. Video Tape Will: Probably no effect b/c doesnt follow written req. No good b/c cant be attested, but can be used for testamentary intent.
14. Competency of Witnesses Who can be a Witness?
a. Morea (96) - 3 witnesses: (1) got nothing, (2) son-less than his intestacy share (disinterested), & (3) friend George.
i. Cali has rebuttable presumption that if witness takes under Will, theres presumption that it should be purged (benefit under will struck, that u
dont get w/ intestacy), if some UI or suspicion, but if theres no evidence can still take gift as interested witness.
ii. UPSHOT: Witness can be disinterested, if they take either way, but are taking less under Will.
b. NY EPTL 3-3.2 (08): If theres 1 witness that receives beneficial disposition, then there needs to be at least 2 other disinterested witnesses that dont
have beneficial disposition. Ure still competent witness, just arent disinterested.
15. Execution Ceremony & Safe Guarding Attested Will SEE REQUIREMENT OF DUE EXECUTION
16. Mistake (Cts will generally not correct mistake on Will)
a. Pavlinko (59): H&W switched wills & signed each others, mutual & reciprocal w/ residue to W bro. UPSHOT: Switched Wills will be considered
invalid b/c it doesnt meet probate reqs. They leave room for fraudulent claims, if permitted to probate.
b. Snide (1981): Similar to Pavlinko but had 3 kids (1 minor), only guardian contests will.
i. 2 options: (1) reform mistake (change names on Will) OR (2) probate Will T intended to sign but didnt.
ii. UPSHOT: Switched Wills can be probated through 2 options (see above). In this case, Ct chose reform mistake, since Wills were signed, attested
to by same witnesses, & executed, all at same time; so no risk of fraud or mistake. (Substantial Compliance)
c. Substantial Compliance: Ct may deem defectively executed Will as being in accord w/ statutory formalities if defective execution nonetheless fulfills
purposes of these formalities. (vs. Strict Compliance must follow all req)
d. Dispensing Power/Harmless Error Rule: Ct given power to consider extrinsic evidence (EE), if necessary, to determine testamentary intent.
Ct may excuse noncompliance w/ statutory formalities if theres C&CE that T intended doc to be his Will.
e. Ranney (91): Witnesses only signed affidavit (attached to Will), but didnt sign Will. 2-step self-proving afft.
i. UPSHOT: Even if there isnt strict compliance, if theres C&CE of substantial compliance w/ due execution reqs Will can be probated instead
of intent of wanting it to be their Will (like in UPC).
f. UPC 2-503: "Doc or writing is treated as if it had been executed in compliance w/ [reqs of 2-502] if proponent of doc or writing establishes by C&CE
that T intended doc or writing to constitute (i) T's Will, (ii) partial or complete revocation (iii) addition to or alteration of or (iv) partial or complete
revival of formerly revoked Will or of formerly revoked portion.
g. Rest.(3d) & UPC: must provide "C&CE" that doc to be probated was intended to be Ts Will. Greater burden on proponents, & will req more proof &
more effort to pass muster.
h. Hall (02): Ts wrote joint-Will & had TW destroy W1, after told by lawyer that joint-Will was signed by them & notarized by lawyer (valid). TH kid
challenge Will, saying not valid, since it not complete (added edits to it), & b/c no witnesses.
i. UPSHOT: Even if there was harmless error/dispensing power, Will can still be deemed valid, if Ts intent was clear.
B. Holographic Wills Valid Holograph: (1) Testamentary Intent; (2) Date; (3) Sig (sig generally used); & (4) Handwritten. (Can be attested to)
1. NY only recognizes holographs (1) those in battle field (expire 1yr after discharge), AND (2) if at sea (expires in 3yrs)
2. Those who dont recognize holographs will recognize holographs from State that does.
3. Any States, w/ dispensing power or UPC, will prob recognize holograph, if theres evidence that it reps Ts testamentary intent by C&CE.
4. Key Issues: (1) How do u treat something that isnt entirely in Ts handwriting?; & (2) How can u tell if T intended it to be Will?
5. Kimmel (24): T wrote letter to sons & near end told them to keep it, if something were to happen (condition) theyd get everything.
a. UPSHOT: Sig would be deemed valid, if its been used consistently by T, as their sig to proponents.
6. Handwritten & Printed Material
a. 1st gen statues: entirely written, signed, & dated. In handwriting of T. Mere surplusage (no intent to incorp printed material). No type written parts
b. 2nd gen statutes (69 UPC): material provisions. Req only that sig & material provisions of holograph be in Ts handwriting.
c. 3rd gen statutes (90 UPC): material portions & EE allowed. Req that material provisions be handwritten changed to material portions.
1. HYPO: Folamicar, house, yacht then leave is typed & would be considered material provision; It will be considered for context.
7. Gonzalez (04): T use pre-printed form. Liz saw T sign form, 3 witnesses signed blank form, which he intended to rewrite 1 st form on. 2nd Gen App.
UPSHOT: Pre-Printed form used for Will can be deemed valid, if typed written part can be incorp into Will & used as context (mere surplusage).
8. Kuralt (00): T had mistress (Shannon); T gave part of his Montana prop to. T intended to convey rest of it to her b4 T died, but didnt.
a. UPSHOT: Words of doc will be used in order to find testamentary intent of T & would consider EE.
9. Testamentary intent: intent for this doc to be Will. Dispositive intent: intent for __X__ person to get __X__ prop.
10. HYPO: Negative Will holograph I dont want my son to get anything. CL: doesnt recognize ; UPC: recognizes
11. Noncupative (Oral) Wills: limited # of (21) states recognize written only in extreme circs OR small amount of prop; rarely probated. Reqs: (1) must be
uttered in front of witnesses; (2) witnesses must put it down into writing w/in rable time.
I Revocation of Wills
A. Terminology Ambulatory: Will can be revoked at any time b4 death. Revival: bring back previously revoked Will.
1. Revocation: termination of validly executed Will (1) by subsequent writing executed w/ testamentary formalities [operation of law]; OR (2) by physical act
such as destroying, obliterating, or burning. (Proper revocation of original, revokes all copies)
a. Common Law (CL): intent to revoke, act done by T (by way of destroying, obliterating, or burning Will).
b. UPC: intent to revoke; varies on way revocation is done (physically or subsequent instrument)
B. Revocation by writing or physical act
1. Revocation by Physical Act under CL CL reqs: (1) T or some1 in Ts presence & at Ts direction, (2) w/ intent to revoke (animo revocandi), (3) revoke
will by burning, obliterating, tearing, canceling, or destroying Will.
2. UPC 2-507(a): 2 ways to revoke: (1) by physical act OR (2) By subsequent instrument: (a) expressly; (b) implicitly (revocation by inconsistency): Partially
inconsistent w/ prior will (i.e. codicil [CL]; will [UPC]); fully inconsistent w/ prior will [Intent of T still governs! See UPC 2-507 (b-d): 2 rebuttable
3. HYPO: 03 W1 all to A. 08 W2 diamond ring to B & car to C. W1 partially revoke by W2; if fully, then W1 is revoked & rest of estate through intestacy
UPC, if W1 revoked, W2 can stand on its own, & vice versa; CL, if W1 revoked, so is W2, unless intent to stand alone.
C. Revocation by Physical Act
1. Harrison (93): T requests atty to destroy orig will, he does, then bene tries to probate copy. (not ok under CL, but ok under UPC)
a. UPSHOT: In order for Will to be revoked, there must be proof of Ts intention & must be done to original.
2. Lost Will Statutes: (1) Destroy w/o permission; OR (2) not w/in statutory reqs, THEN can be probated if contents can be proven. Some states prohibit
probate of lost wills unless: (1) Proof that Will existed at time of Ts death; OR (2) Will was fraudulently destroyed during Ts life.
3. Thompson (34): Judge & lawyer revocation didnt touch Ts Will. Remedies: (1) No compliance w/ revocation statute: No liability for lawyer for
negligence (N). NOTE: Leave parties where theyre at time of lawsuit & probate will; (2) No compliance w/ revocation statute but lawyer is liable to heirs
for N. (NOTE: No need to fix mistake b/c of recovery from N claim); (3) Impose constructive trust on will bene for Ts heirs; (4) Dispense w/ formalities or
hold that there was substantial compliance (or harmless error) & probate will.
a. UPC permits harmless error for destroy Will. Under UPC, revoking act would be permissive, since no need to touch 4 corners of Will.
b. UPSHOT: In order for Will &/or codicil to be validly revoked, revocation must touch them. (CL)
D. Partial Revocation by Physical Act Traditional approach turns on net effect on distribution due to cancellation.
1. UPC permits it & so do many states. BUT, some only allow Subsequent instrument, & not physical act b/c gets rid of possibility of fraud.
2. In jurisd that do recognize partial revocation: Some would permit increased share; Some wouldnt permit it based on revocation. Revoked part will go
through intestacy or go into residuary. BUT, if person revoked was part of residuary, then gift would increase (but only for some jurisd); rather than outright
gift. Some jurisd have no residuary of residuary rule. (only to residue, only intestacy, anywhere even increase 2 nd person [UPC])
3. HYPO: (1) Partial not allowed at all, then Will stands b/c physical act not enough; (2) Partial recognized, but it depends on Jurisd & type of gift; (3) Partial
not recognized, unless its w/in residuary.
a. Under UPC, partial revocation is recognized, unless someone claims fraud.
b. In jurisd that do recognize partial revocation: (1) some wouldnt permit increase in share based on revocation, so that part goes through intestacy or
residuary b/c increase in Will benefit counts as new gift, so youd need new Will or codicil; (2) BUT, if person revoked was part of residuary, then gift
would increase (only for some jurisd), rather than outright gift.
4. HYPO: T leaves house & ties to Monica. Ties crossed out. (1) Recognizes, then ties through intestacy. (2) Doesnt, Monica gets it.
5. HYPO: T residue to Hillary, Chelsea, & Roger. Hillary crossed out. (1) Doesnt, then Hillary still takes; (2) Does, its in residuary, so they split, but if
banned (irrespective of residuary), then through intestacy. Under UPC, they split.
E. Jurisdictional Revival Approaches
1. Pursuant to CL: (1) [English CL] W1 isnt revoked unless W2 still in effect at Ts death. Wait & See approach. ; (2) [Majority] W2 legally
revokes W1; if W2 is revoked, W1 is revived only if T intended to do so, through subsequent action. ; (3) [Minority] W2 legally revoked W1; if W2 is
revoked, W1 can only be revived through re-execution.
2. Revival Pursuant to 1990 UPC 2-509: (a) W2 wholly revokes W1, through physical act, & W1 can only be revived if there was intent to revive.
(Presumption is T didnt want revival, but can be rebutted). ; (b) W2 partially revokes W1, through physical act, & W1 is revived unless otherwise stated
(Presumption is T wanted revival, but can be rebutted).; (c) W2 revokes W1 in whole or in part, then W2 is revoked by W3, both remain revoked, unless
theyre revived. Intent to revive is based on terms of later Will itself (express terms)
3. HYPO: W1 all to Dean Lane; W2 WT&E casebook to Prof Folami.
a. (1) W1 is partially revoked by W2 to extent of casebook. CL: W2 is codicil; UPC: W2 is another Will.
b. (2) CL: If W2 revoked, then W1 stands as it was, since W2 was codicil. UPC: same result, but as will.
c. (3) CL: If W1 revoked then everything to intestacy; UPC: If W1 revoked, then everything to intestacy, except textbook.
4. Physical revocation of W2/Codicil, that only partially revokes W1, under UPC, brings back W1, if u revoked what CL calls codicil.
F. Dependent Relative Revocation (DRR) Revoc of all/part of Will is ineffective, if revoc is based on mistake (mistake of fact or law).
1. Some jurisd only recognize mistake of law & not mistake of fact. Some will recognize if its on face of doc.
2. In essence, if jurisd applies DRR, W1 will be revived b/c T destroyed it under mistake of fact or law.
3. HYPO: All to A, but A wronged me so to B now. 2 witnesses, but signed b4 T. Thinking W2 is effective, goes home & destroys W1, but W2 invalid -
improper execution (order of events). T doesnt want estate to go through intestacy.
a. Some jurisds will use DRR to revive W1, since W1 was destroyed b/c T believed W2 was good, when it wasnt.
4. Key Qs: (1) Was intent to revoke conditional?; (2) Did condition fail?; (3) T prefer revival of revoked will over intestacy?
5. LaCroix (1953): Improper execution of codicil, interested witness. (nephew name). Does invalid codicil revoke will?
a. UPSHOT: DRR can be used to revive validly executed Will, if invalid codicil is added that could void all or part of will.
6. Limits on DRR: Some limit intent for distrib, but it failed b/c of mistake of fact, so intent must be on face of doc.
7. HYPO: (a) T Will give $5k to Judy & residue to Mark. T executes codicil revoking Judys b/c shes dead, BUT isnt. Some Cts will apply DRR b/c
mistake is cited in instrument itself. ; (b) Revoke b/c I already gave Judy $5k, but not true. Some wouldnt recognize that type of mistake. Goes for type of
mistake that affects disposition. ; (c) Just revokes Judys disposition & nothing else. This wouldnt be enough, even if theres EE to prove mistake, since it
isnt mentioned in codicil.
8. Alburn (63): T died in 60. Sis filed probate petition for intestate distrib. Viola filed for probate of 55 Milwakee will. Lulu filed for probate of Kankakee
will. Can be considered almost reverse DRR case. Under UPC, Milwaukee Will would come back, rather than Kankakee Will.
a. UPSHOT: DRR can revive last revoked Will, if T didnt know other previous Will couldnt be revived w/o further action. (UPC)
G. Revocation by operation of law: change in family circumstances
1. CL: (1) When women marry Will would be revoked; (2) For men, Will would be revoked when he marries & has kid.
2. Some states do automatic revocation of Will, of Ts provisions when theres divorce. BUT, only to exs part (some only if prop settlement)
3. Some states would only do automatic revocation of Will, in divorce situations, if theres prop settlement.
I Components of a Will
A. Doctrines: (1) Incorp by Reference; (2) Acts of Independent Significance, (3) Integration, (4) Republication by Codicil.
1. This involves docs that arent wills, that arent validly executed, but can help in disposition of prop.
B. Integration: all papers present at time of execution, intended to be part of Will, are integrated into Will.
1. In order for doc to be integrated into another doc (purported Will): (1) Neither doc (Integrated or integrating docs) has to be duly executed; (2) Integrating
doc does have to be (a) present at time of execution & (b) intended to be part of Will.
C. Repub of Codicil Rest(3d) of Prop 3.4 (99) Will is treated as if it were executed when its most recent codicil was executed, whether or not codicil expressly
republishes prior Will, unless effect of so treating it would be inconsistent w/ Ts intent.
1. Repub of Codicil can repub or re-execute Will as of date of codicil. BUT, only applies to validly executed Will. (Will meets due execution)
2. Can codicil repub Will thats defective on mental capacity or UI grounds? NY doesnt generally permit incorp of unattested docs into Will, codicil can
repub & give testamentary effect to Will thats invalid b/c of those defects, but needs due execution w/ req formalities.
D. Incorp by Reference: UPC 2-510 Writing in existence when Will is executed may be incorp by ref if language of Will manifests this intent & describes writing
sufficiently to permit its identification.
1. Clark (91): T gave almost everything to Fred (cuz), but some will be in memo (Memo written in 72; Will executed in 77; 2 codicils on 5/30/1980 &
10/23/1980; notebook from 79). (Notebook permitted b/c codicil republished Will w/ new date)
a. UPSHOT: Subsequent writings can be incorporated by reference & republication by codicil.
2. Simon (40): Will referred to letter dated 3/25/32; Will executed b4 T execute codicil on 11/25/33, after letter dated 7/3/33. Ct stretched incorp by reference.
UPSHOT: Incorp by reference can still be used if docs were repub by codicil.
3. Johnson (54): T had unexecuted Will, then wrote codicil on it. Ct re-executed date, validating Will w/ codicil.
a. UPSHOT: OUTLIER CASE; this case permitted republication by codicil of Will that wasnt validly executed.
E. Acts of Indep Significance: If bene or prop designations are IDd by acts/events that have lifetime motive & signif apart from their effect on Will, gift will be
upheld under acts of independent signif (nontestamentary acts). ACT has some signif, besides bequest of prop.
1. UPC 2-512. Events of Indep Signif: Will may dispose of prop by reference to acts & events that have signif apart from their effect upon disposition made by
Will, whether b4/after execution of Will or b4/after Ts death.
2. HYPO: (1) Leave house & contents to Monica (even though items change, theres separate reasons why T changed them); (2) Contents in desk draw (locked
v. unlocked draw & why you did it?); (3) Envelope w/ name in safe deposit box; (4) T give residuary to charitable trust establish in Bros Will (she had
reason to give it to bro to give out).
I Admission of Extrinsic Evidence (Ambiguity, Mistake, and Omission)
A. Interpretation of Wills
1. Mistakes & Ambiguities in Language: If face of doc doesnt show mistake (mistake in belief), generally (plain meaning) rule, Ct wouldnt permit EE to cure
mistake. Distinct from other Mistake issues that affect testamentary intent/disposition.
2. BLACK LETTER RULE: If theres no ambiguity on its face, plain meaning rule applies.
3. General Rule on Mistake re Ambiguity 2 Main Issues (1) Did T mean what she said? (literally) & (2) Did she say what she meant?
a. Plain Meaning Rule: EE may be admitted to resolve some ambiguities, but PM of words of Will cant be disturbed by evidence that another meaning
was intended. Intent of T should be gathered from only 4-corners of Will.
b. No Reformation Rule: equitable remedy that, if applied to Will, would correct mistaken term in Will to reflect what T intended Will to say. cant
create or change words in Will at all, to reflect what T may have intended.
4. Mahoney (33): T wanted to give 25 cousins, not aunt, prop. But, lawyer put heirs-at-law.
a. UPSHOT: If no ambiguity on Wills face, then PM rule will apply & no EE will be used.
5. Ambiguities
a. Latent Ambiguity: Manifest itself only when terms of Will are applied to Ts prop or designated bene.s. (1) Occurs when Will clearly describes
person or thing, & 2+ ppl or things exactly fit that descrip. Called equivocation. Cts reasoned that EE merely made terms of Will more specific w/o
actually adding to Wills terms, which would be forbidden. Personal usage exception; (2) exists when no person or thing exactly fits that descrip, but
2+ ppl or things partially fit.
i. Need EE to help clear up info. Most jurisd wouldnt let in oral declarations; some let in info from atty. Some permit info from T.
a Patent Ambiguity: on face of doc, theres ambiguity. Under traditional law, EE isnt admissible to clarify patent ambiguity, & Ct is confined to 4
corners of Will, even if as result Will or devises fails & prop passed by intestacy.
1. Smith (90): Perry Manor UPSHOT: No ambiguity on Wills face, so PM rule will apply & no EE used.
6. UPC 2-805: Rejected PM rule. Openly allowing/approving reformation broadly for mistakes.
a. Need C&CE to use reformation to correct mistake & there must be mistake of law or fact, whether in expression or inducement. Can also bring in EE
for personal use references (w/ oral declaration)
1. Arnheiter (56): T left her 1/2 interest in her prop, but got street # wrong w/ address. Ct fixed error, since it didnt add anything to Will.
a. Used falso demonstration non nocet doctrine: mere erroneous descrip doesnt vitiate. Where descrip of thing or person of several particulars & all
of them dont fit any 1 person or thing, less essential particulars may be rejected provided remainder of descrip clearly fits.
b. UPSHOT: If theres mere erroneous execution error, Ct would be permitted to fix it & execute Will properly.
7. Gibbs (61): Couple left bequest to wrong Krause. No latent or patent ambiguity. Ct said middle initials can get confused. Ct permits EE.
a. UPSHOT: Issues like w/ middle initials are common error & EE can be used to correct it.
B. Correcting Mistakes
1. Erickson (98): Will made 2 days b4 wedding w/ clause about death & who gets what. Ts daughter contests will, which would prevent Wifes kids from
taking. UPSHOT: If theres scriveners error & intent of T can be shown, through EE, then Will can be probated.
a. Theres statute that said marriage revokes Will, unless theres contingency clause. UPC permits evidence, as long as, its C&CE.
b. Scriveners error: (dissent Conn Junior Republic) misled T into executing Will on belief that its valid notwithstanding Ts subsequent marriage, EE of
that error is admissible to establish intent of T that his/her Will be valid notwithstanding subsequent marriage.
2. Gifts by Implication: Recurring oversight in drafting is gap in dispositive provision particular contingency (who occur) isnt provided 4.
a. NJ Doctrine of Probable Intent: If contingency occurs for which no provision is made in Will, Ct studies family circumstances & plan of testamentary
disposition set forth in Will. Ct then places itself in position of T & decides how T probably wouldve responded to contingency had she envisioned its
3. Fleming (1904): Ts Will got P to sleep w/ him. UPSHOT: EE can be used to prove that Will wasnt executed based on statutory reqs.
I Lapse: (Death of Beneficiary Before Death of Testator)
A. Basics of Lapse: Principle of Lapse determines that if bene isnt alive when Will is executed, devise lapses.
1. Under CL, can fall into residuary or intestacy. EXCEPTION: Class gifts, where rest of class would take entire gift evenly.
a. Majority: spread it out. Minority: if residuary dies, then it goes to intestacy, w/ no residue-of-a-residue rule. These states have issue w/ residue
increasing for residuary. (like w/ partial revocation)
2. Void Gift: bene was dead at time of execution of Will. Has same effect of lapse except w/ class gifts.
B. Lapsed Gift? Types of Gifts: (1) Specific [give specific defined gift to bene (falls to residuary & if none, to intestacy)]; (2) General [something like money
(falls to residuary & if none, to intestacy)]; (3) Residuary [fall to intestacy, if only 1 residuary or if lapses or voids]
1. Lapse is default rule to Ts intent of alternate distrib. Applies if T didnt put alternate distrib.
2. Russell (68): Estate to friend & dog, small bequest to niece. UPSHOT: There must be explicit wording to show class, otherwise voided or lapsed gifts go
to residuary or intestacy.
3. HYPOS: (1) $2k to Chester & Roxy, residuary to Nan. (Roxy gift voided; Under CL, it goes to residue, if not class gift; $2k is general gift); (2) $2k to
Chester, residuary to Nan & Roxy? (Roxy is void residuary & lapses; Minority says goes to intestacy b/c of rule & Nan gets it anyways; Majority says
residuary still splits it); (3) $2k to Chester & Roxy, residuary to Nan? Chester is crossed out. [(i) If theres no partial revocation jurisd. then Chester takes,
Roxy lapses, & Nan takes residuary; (ii) If there is partial revocation jurisd, then Chester doesnt take & Roxy lapses, & Nan takes all in residuary. If theres
no-residue-of-the-residuary rule, then may be issue.]
C. Anti-Lapse: gives lapsed benes devise to their descendents, not residuary, unless otherwise stated. But, relship must be considered (Protected Relship).
1. Gifts still lapse but saves it from intestacy or residuary clause & passes it to sub taker of predeceased legatee if legatee is in protected relship w/ T.
2. Keep In Mind: Must be both (1) Qualifying protected relship & (2) Qualifying substitute taker.
3. UPC 2-605: Antilapse; Deceased Devisee; Class Gifts devises who predecease T, & are grandparents or lineal descendents of grandparents will be those
who take, but of those who are, those w/ highest degree of kinship. If equal degree of kinship, share equally.
4. Anti-Lapse Considerations (1) Is it protected relship (which turns on relship of bene to T)?; (2) Was bene alive at time of Wills Execution? (Note:
Some jurisds dont apply anti-lapse to void gifts); (3) Is gift to class or individual?; (4) Id whether theres qual sub taker?; (5) are there contrary intentions of
T expressed in Will (that they wouldnt want anti-lapse statute to apply)
5. Protected Relship under anti-lapse statutes (CL-pre-anti lapse-gift lapses)
a. Majority: protect bene thats lineal decedents of T ; Minority: dont care about relship dont require relship (9 States)
b. Some protect T siblings & relatives of spouse (but not spouse)
c. Later version of UPC protects step-kids also. UPC reqs more than survivorship language.
6. Substitute Takers: Who can be substitute taker? Descendants of bene.
a. All but 3 jurisd say substitute taker must be descendents of pre-deceased bene. (3 allow any heir to be substitute taker)
7. 2 separate Qs: (1) protected relship b/w T & bene?; & (2) is there sub taker-is there lineal descendant of bene?
8. HYPO: $15k to my GF, residue to wife. GF predeceases. (1) CL (pre-anti lapse), wife takes all (general gift); (2) Majority (anti-lapse) is GF not lineal
decedent, so goes to residuary; (3) 1969/1990 UPC would go to wife b/c GF not protected; (4) Minority (9 States): GF kids take, otherwise wife; (5) Minority
(3 states) any heirs of GF take.
9. When Intent Trumps Anti-Lapse: UPC & Rest need more than statement in Will to rebut anti-lapse statute. Need to add substitute devisee.
10. Words of Purchase/Limitation And vs Or And creates words of limitation, while Or creates substitute taker
a. Rule: A & her heirs, scenario where A predeceases T, anti-lapse wouldnt apply & would allow sub-taker to take. Lapse & goes to residuary OR go
back to T & go through intestacy.
b. Rule: A or her heirs, seen as gift to A, but if A dies b4 T, then to her heirs.
D. Class Gifts: If theres lapse, it will redistribute, but w/ Anti-Lapse, it goes to lapsed persons kids. (Class Rule trumps no residue rule, under CL)
1. CL: if member of it predeceases rest, then rest split among whole pot evenly (has no residuary-of-residuary rule, but some dont use it)
2. Under Anti-Lapse & Class Gift, need relship w/ T & class member for it to apply.
3. Majority: anti-lapse applies if theres qualified taker, if not goes to other class members.
4. UPC: Anti-Lapse applies if theres qualified taker, if not goes to other class members (ignores no residuary-of-residuary rule)
5. Minority: 3 State (any heirs of bene) & 9 State (no special relship necessary) rules. Both have anti-lapse statutes.
6. HYPO: CL-split among remaining class members.
a. (1) T residuary to 4 grandkids, 1 dies. No residue rule: 3 get each & to intestacy (& goes to loser son). ; If no no residue rule: 3 kids split whole
pot. ; Anti-lapse: 3 get each & then (1) is there protected relship? Yes b/c lineal decedent of T & (2) is sub- taker good?
Yes. Therefore, go to T grandkids kid.
b. (2) T residue to class & no residue rule, 1 dies. Class still gets to split it b/c under CL Class rule trumps no residue rule.
7. Dawson (1968): T devises interest in farm to hubby 2 nephews & residue to 2 ppl. 1 dies & other claims class gift. Anti-lapse cant apply b/c nephews not
qual sub taker. UPSHOT: Class gift must be explicit on face of Will; otherwise it will be deemed specific gifts, especially when specific amounts are
devised to specific ppl (names used).
I Changes in Prop After Execution of Will
A. Changing Prop Classifying Gifts (1) Specific [include items (diamond ring)]; (2) General [just money]; (3) Demonstrative [specifies source of money]; (4)
Residuary [remainder of estate, not devised to any1 else or lapsed devise]
B. Ademption Two types (by extinction or by satisfaction)
1. 2 approaches (identity or intent theory): Identity Approach is if gift extinguished if devised item isnt there (Majority Approach). Intent Approach is if
gift not there, can be replaced or cash value, if T intended that. NOTE: CL exceptions, change in form, etc.
2. Ademption by Execution: item was specific & disappears, so bene gets nothing. Gift no longer available to devise (not owned or exists).
a. Doesnt apply to general, demonstrative, or residuary devises.
b. EX: My 10 Armani ties from closet to Jonathan. Ties stolen. John gets nothing.
c. EX: T to Jon 10 Armani ties. Ties disappear. Gift considered general & cant go away by ademption by extinction. Executor uses estate to buy 10 ties
& give them to Jon.
3. Anton (07): T leaves interest in duplex to son & Gretchen. Nancy uses estate to pay for Ts nursing home care, then sells house to pay. Gretchen claims no
ademption by extinction b/c T needed to know house was sold & no proof of intent for it. Ct doesnt adeem gift & gives Gretchen half of remaining value of
house, not sale value. UPSHOT: Gift cant be adeemed unless its w/in knowledge of T.
a. Bierstedt (63): Ct rejected application of rigid identity rule & applies what it called modified intention approach. Under modified intention
theory, identity rule wouldnt be applied to cases where specifically devised prop is removed from estate through act thats involuntary as to T.
4. 69 UPC 2-609: Followed identity theory w/ exceptions: (1) remaining balance on purchase price of specific prop sold; (2) unpaid amount of condemnation
award; (3) unpaid ins proceeds after destruction; (4) prop owned by T as result of foreclosing mortgage; (5) sale price of specifically devised prop by
5. 90 UPC 2-609: Leans towards intent theory & slight presumption against ademption. Devisee gets: (1) specifically devised prop ; (2) amount generated
(paid or unpaid) by its sale or destruction ; (3) prop owned by T acquired as replacement; or (4) if devisee recovers nothing under above, value of specifically
devised prop unless facts & circumstances indicate T intended ademption. [NOTE: Under this, where prop was sold or destroyed by conservator, devisee
has right to general pecuniary devise equal to net sale price of specified gift.]
6. HYPO: (1) Ford Car sold & bought Rolls-Royce Under identity approach get nothing, but under Intent approach (similar to independent significance
theory) get something.
7. Ademption by Satisfaction: generally applies to only general gifts; may apply demonstrative or residuary. (Gave part of gift during life)
a. HYPO: A to B for $30k, gave B $20k b4 death. So, after death B only gets $10.
b. No presumption of satisfaction in UPC. Evidence of Ts intent, that gift is adeemed, must be in writing.
C. Additions/Accretions: What happens when assets increase in value or generate income? Do bene.s get benefit of add-ons?
1. Absent contrary intent by Ts specific gift to bene, usually include crude but unpaid income on that gift.
2. Cash dividends: General Consistent View generally goes to residue.
3. Stock dividends: generally to intended bene.s. Sometimes treated like cash dividends.
4. Stock Split: generally goes to specific devisee.
D. Exoneration: Pass prop w/ debt attached to it. CL: bene take w/o lien (absent contrary intent) ; UPC 2-607: bene takes w/ lien.
E. Abatement Pay off debts: from residuary, then from general, & finally from specific. Get proportional split of remainder of money after debts paid.
1. Some states have statutes that state cant abate spouse or kids devise. (NY & UPC, unless it says free & clear, debt follows)
2. What if Will didnt say free & clear to wife as in rule in NY & UPC? Then wife takes house w/ mortgage & has to pay it off.
Intestacy and Providing for Family
I. Rights of Surviving Family Members
A. Intestacy and Introduction to the Statutory Scheme
1. Points of Reference for Intestate Distribution: (1) Rigid distrib scheme; (2) Preference for descendants over ancestors; (3) Relevance of intent diminished;
(4) Applies only to probate prop (not non-probate prop); (5) Besides spouse, blood determines distrib.
2. Descent Issues to Keep in Mind: (1) Who is eligible to take?; (2) Order in which ppl take?; (3) Allocation of shares among takers? Note: Split in jurisd
primarily on whether shares to takers in equal relship to T should be distributed equally.
a. Whether remote collateral relatives take at all. Does jurisd permit this? (laughing heirs)
3. Under UPC, Surviving Spouse gets (UPC 2-102)
a. 100% if: No surviving parent(s) & no descendant(s) & if shared kids If theres mutual kids: parent(s) dont matter.
b. 300k + if: Surviving parent but no descendant(s). Step-kids of T dont matter. Also, parents take more under typical intestate non-UPC (where they
get instead of ).
c. 225k + if: Ts descendant(s) are also surviving spouses descendant(s) & surviving spouse has 1+ other descendants. (mutual kids & 1(+) step-kid
of deceased.)
d. 150k + if: Some but not all of Ts descendant(s) are also surviving spouses descendant(s). (mutual kids & 1+ are only decedents)
B. Simultaneous Death
1. Takers (Who are eligible?): Arent specifically disinherited (Negative Will) & survive T. (Survive by how much?)
a. Uniform Simultaneous Death Act (USDA): (1) 1st Approach: No sufficient evidence std (See Janis); (2) 91 Amend: C&CE + 120hrs; (3) State Jurisd.:
C&CE. USDA said when no suff evid then each half goes to each others families.
2. Janus (85): H & W died simultaneously. H declared dead b4 W. Hs mom contests life ins policy transfer. Evidence proved H was brain dead 1 st.
a. Focus is on time of death, not cause of death. (UPC tries to better define survivorship Under this Mom would take)
b. UPSHOT: Spouse must obviously survive T, in order to take & residuary bene wouldnt take share.
C. Shares of Descendents
1. Strict per stirpes (English per Stirpes): Divide at 1st Gen of Ts descendants, equally, even if not alive. If 1st line has no issues, strike them, since no1 can
take for line (some1 dead & no descendants, share gets split by those alive or dead w/ descendants).
a. HYPO: A to B (E, F, G), C, D. C & D take 1/3 each & Bs 1/3 gets go to E, F, & G.
2. Per capita w/ Representations (Modern per Stirpes): Looks 1st to see if kids survive. If so, then same as strict per stirpes. IF NOT, estate is divided equally
(per capita) at 1st gen which theres living takers & they all take evenly. If deceased & no descendants then theyre not included. If deceased & have
descendants, then they take deceaseds share.
3. Per Capita at each gen (UPC): Like modern per stirpes, but those who have died at 1st gen of living takers, have their share pooled & its split evenly w/
next level of living takers (who dont have living ancestors).
D. Shares of Ancestors & Collaterals UPC stops at 2nd Line, & remainder esthetes to State, since laughing heirs too far remote from T.
1. Reading Collateral Line: Ts line is 0, parents line is 1st, & grandparents line is 2nd. Degrees begin at # of line & increase by 1 as u go down.
a. EX: Degree of Niece/Nephew 1st line, 3rd down, so going down you keep adding 1 & hit their box at 3. Theyre 3 rd Degree from T.
2. Ancestors (1st Line collateral): come into play when T doesnt have any issue/kids. Go from top of that line & down.
3. Every1 else (2nd Line Collateral) Who takes? 2 Approaches
a. (1) Parentelic System: more than 1 taker in each line. Closest takers take & farther dont (based on which line theyre on).
b. (2) Degree of Kinship: more than 1 in degree of kinship. Look at degree of kinship, lower degree takes. IF same degree but diff lines: Use Parentelic
Tiebreaker. Majority of States would use degree first, then use line (parentelic system) to decide who takes.
4. Half-Blood: (1) b4 excluded; (2) UPC no distinction; (3) Some Juris only get half what full-blood get; (4) Some only gets if no full-blood.
I Transfer to Children: Adoption
A. Introduction
1. CL (generally): Adopted kids can inherit from & through natural parents (b4 63). Inherit from adoptive parents (in some jurisd not through them
pursuant to stranger-to-adoption rule) generally adoption terminates relship w/ natural parents (after 63).
2. Modern Law: (1) Adoptive Parents: from & through both ways; (2) Natural Parents: (a) Yes for adopted kids adopted by step-parents. From & through; (b)
Limit to from & through on part of natural parent taking from adopted out kid & adopted out kids descendants.
3. Open Qs Regarding Natural Parents: (1) Retention of full inheritance rights w/ adopted kid; (2) Elimination of all ties w/ adopted kid; (3) Adopted inherit
from not through natural parents kin; (4) Natural parents prohibited from inheriting from adopted kid while kid inherits from them; (5) Adopted inherits
from adoptive relatives & also from genetic relatives if adopted by stepparent (UPC. Rest.).
4. Adopted kids cant inherit from & through natural parents. Those who give up rights cant inherit unless they show relship w/ kid.
5. For other natural parent to take, they must prove relship; otherwise, only adoptive parent married to natural parents are takers.
B. Adoption Hall (88): Earl died & Liz re-married to Jim. Jim adopted 4 kids. Then, Will (Earls Bro) dies & 4 kids try to inherit through Earl.
1. UPSHOT: Adopted kids cant inherit through natural parents (Ct doesnt want adopted kids to have more rights than natural 1s.)
C. Adult Adoption Useful to prevent Will contest by denying standing to potential contestants. NY can adopt adults, not lover.
1. Minary (67): Mom passed & left Trust for kids, one son adopts wife so she could take. (against intent of T)
a. UPSHOT: Can permit through adoption, unless it violates testamentary intent.
D. Virtual Adoption ONeal (94): Hattie passed around, never formally adopted, therefore cant take from adoptive dad.
1. Equitable Adoption: permits kid to inherit from foster parents/caretaker who was essentially parent.
2. Majority: to have virtual adoption, need K b/w natural parent & adoptive parent. Need this for authority.
3. Dissent: said there was implicit evidence of virtual adoption. She expected inheritance.
4. UPSHOT: There must be legal adoption, in order for kid to inherit from & through parent.
E. Posthumous Children: Time limits on those kids who are conceived but born after death of father. (280-300 days after death).
1. Uniform Parentage Act 204- rebuttable presumption that kid born w/in 300 (not 280) days after death is H kid.
F. Nonmarital Children Can inherit from father after proof of kinship & Ct proceeding.
1. CL - no from & through anyone but their descendents (no ancestoral inheritance) States now permit to inherit only from mother.
G. Advancements Similar to ademption by satisfaction under Will. ; CL - inter vivos gift to kid presumed advancement
1. UPC 2-109: Reverses presumption, reqs intention to make advancement be declared in writing signed by grantor or grantee.
2. Hotchpot: if gift treated as advancement, its accounted for in distributing decedents estate by bringing it into hotchpot.
a. Add gift to estate & divide according to what T wanted to distribute (in proportion)
b. Ppl would only want to add inter vivos gift back into hotchpot if they would receive higher return on distribution
H. Managing a Minors Prop: Guardian (appt by ct. legal decisions) conservator (financial) custodian (physical custody) & trustee.
I Bars to Succession
A. Homicide: UPSHOT: Cant take from person u killed & ure treated as if u predeceased T. Estate of Mahoney (intent to kill dispositive)
1. 3 approaches: (1) Legal title still passes to slayer; (2) Legal title doesnt pass to slayer; (3) Legal title passes & holds as constructive trust
2. Should bar also apply to nonprobate/intestacy scenarios? UPC says yes.
B. Disclaimer u disclaim to avoid taxes & are treated as if u predeceased T.
I Rights of Surviving Spouse, Omitted Spouse and Family Members
A. Marital Prop Systems
1. Dower- 4 State still use this (2 give options). Only for surviving widow & can get life estate in Hs prop he owned in fee simple.
2. Curtsey- This is dower option for husband/widower. He gets 1/3 only if there are kids.
3. Overview: Statutory Spousal Protection System (1) Dower alone (only 2 States); (2) Dower &/or indefeasible elective share (2 States); (3) Indefeasible
percentage share alone (eg elective share)(MAJORITY); (4) UPC & others: augmented estate; net estate (8+ States) ; (5) Community Prop (8 States).
(1)-(4) only in separate prop states.
4. Spousal Protection
a. Community Prop: 1/3 of all prop acquired during marriage from earnings, attaches at marriage, split equally at death (& divorce).
b. Trad Elective Share (Sep Prop states): Usually only 1/3 of probate estate considered, some like NY factor in non-probate (Net Estate)
c. Augmented Estate (Separate Prop states): Proportion of probate & non-probate estate, plus separate prop
d. NOTE: Intestate Shareprobate estate only & usually higher percentage than elective share.
5. Reaction to Separate Prop Scheme
a. Support Theory: expected to support spouse (policy justification to provide surviving spouse w/ adequate support)
i. Homestead: Protects surviving spouse for about 1yr from creditors.
ii. Personal Prop Set-Aside: Right of surviving spouse (& minor kids) to receive tangible personal prop of T up to certain value (NY $15k).
iii. Family Allowance: Allows support of surviving spouse & dependent kids during probate process.
iv. Employee Pension Plans: Spouse can take, even if divorced. Person must name new bene. ERISA protects surviving spouse.
v. Social Security: Spouse can collect if married at least 10yrs.
b. Partnership Theory: since worked on it together, then should get half (elective share implements this).
B. Spousal Elective Share Elective Share v. Ts Volition (Will) = Despite Will of T, must provide for surviving spouse.
1. Elective Share v. Intestacy elective share usually proportionally less but may include (not always) more than just probate prop
a. There must be Will to use elective share option. Under Support, support ends at ur death. Under Partnership, doesnt end at death.
2. UPC 2-203: inherit based on length of marriage. 1990 UPC fixes percentages to length of marriage (see below)
3. HYPO: Wage earner tries to disinherit care-giver? He uses Will to disinherit her, so she can only get elective share. Intestacy u get 100%; Elective Share is
1/3. Since theres Will, then ud have to use either elective share or Wills share.
C. Prop subject to elective share
1. Sullivan (84): H & W separated & H try to disinherit W through trust. W claims illusory transfer, to evade her elective share. Ct said not invalid
testamentary disposition b/c T retained broad power. Even if H tried to disinherit W, W has no right to trust assets, once she has elective share.
a. UPSHOT: If trust used to defeat surviving spouse rights, it will be added to probate prop. (New Rule)
2. Bongaards (03): T held life tenancy in mothers trust & could appoint who she wanted. B4 death, appointed sister as trust remainder. H wanted trust
included in estate. UPSHOT: Bene cant take from Ts trust, created by 3rd party; but can from one created by T.
3. What are tests adopted to determine if transferred prop should be subject to elective share accounting?
a. Illusory Transfer: Illusory revocable trust is valid trust, but it counts as part of Ts assets subject to elective share; trustee may have to contribute
some of trust assets to make up elective share. (used to defeat surviving spouses elective share, not allowed)
b. Intent to Defraud: subjective intent v. objective intent some jurisd look for subjective intent. (Then its included in elective share). Others look for
objective evidence of intent: control retained by transferor, amount of time b/w transfer & death, & degree to which surviving spouse is left w/o interest
in Ts prop or other means of support. Others consider whether T had present donative intent to transfer interest in prop.
4. 90 UPC (including 08 Amend) attempted to replicate community prop jurisd. (includes prop from before marriage)
a. (1) 50% of portion (based on length of marriage) of augmented estate. 1yr is of 3%; 5yr is of 30%; 10yr is of 60%; 15 yr is of 100%
b. (2) Elective share calculator: after determining augmented estate, apply %-age based on length of marriage, credit out surviving spouses prop.
c. NOTE: Augmented Estates comparison to community prop. (1) includes prop of both spouses & not just that earned from earnings or during
marriage, unlike community prop (no such thing as separate prop here) ; (2) Includes gifts, prop brought into marriage, unlike community prop (where
these things are considered separate prop). Doesnt include Life Ins to some1 else.
5. HYPO (UPC 2-209) Steps: (1) What is %? How long was marriage?; (2) Calculate augmented estate-who brings what to marriage; (3) Multiply % by
augmented estate; (4) Deduct surviving spouses prop (what she brought into marriage).
a. (1) Married 18 yrs=100%; (2) augmented estate($100k probate estate to A, $150k nonprobate transfer to others than W, $25k life ins payable to W, $50k
Hs half interest in joint tenancy w/ W, $75k Ws property, $50k Ws half interest in joint tenancy; Total = $450k); (3) 50% x $450k=$225k; (4) $225k -
Wifes property ($75k prop + $50k Ws jt. tenancy +$25k life ins. payable to W, + $50k Hs jt. tenancy held by W= $200k) $225k -$200k = $25k
is Ws elective share.
6. 3 US Sys for Protecting Spouses: (1) Comm Prop ; (2) Separate prop w/ traditional elective share ; (3) Separate prop w/ various estate approach
7. Working Spouse Shares: HYPO: H brings $100k to marriage & Wife brings $25k. During marriage, H earned $400k & W earned nothing. After 4.5 yrs of
marriage, H dies & leaves W $75k.
a. Comm Prop States? of whats collected during marriage, + what she brought in & what she got in Will 400k/2 +25k + 75k = 300k
b. Traditional Elective Share State? 1/3 of net estate & what she brought in [($100k + $400k)/3] + $25k = ~$191.6k
c. 69 UPC? similar to elective share, but include inter vivos transfers (augmented estate) -- [($100k + $400k)/3] = ~$166.6k
d. 90 UPC State ? 50% of 24% of augmented estate -- 100k + 25k + 400k = 525k; 24% of $525k = 126k; & 50% of 126k = 63k; then subtract what she
brought in -- 63k - 25k = $38k
e. NY Approach? $50k or 1/3 of net estate $50k or ~ $166.6k
8. Tax Implications Community vs. Separate Prop
a. Move from separate prop jurisd to community prop jurisd, & change prop, its now called quasi-community prop.
i. Quasi-community prop is prop owned by husband/wife acquired while domiciled elsewhere, which wouldve been characterized as community
prop if couple had been domiciled in community prop state when prop was acquired.
b. Community prop continues to be community prop when couple & prop move to separate prop state.
A Waivers & Community Prop Does life estate count against elective share? Can wife waive elective share? UPC 2-213 enforces waivers
5. Reece (06): T died intestate & widow tried to get prenuptial agreement invalid b/c it didnt show value of his prop.
a. UPSHOT: If theres opportunity, independent counsel, & spouse willingly entered w/ full knowledge, then prenup valid.
E. Family Omission
1. Spouse omitted from premarital Will
a. Prestie (06): T & wife married, divorced, T changes Trust (to make son trustee), still friend, & later remarried. Amend gave her life estate in condo
(after remarriage). Shes pretermitted spouse. Entitled to intestate share. Didnt try elective share.
i. Situations when pretermitted state doesnt apply: (1) provided through marriage K (pre-nup); (2) mentioned & provided for in Will; & (3)
mentioned in Will w/ intent not to provide.
ii. Ct said trust didnt serve as evidence as provision that shes covered. Trust wouldnt prevent application of statute
iii. Ct used literal interpretation of statute & exception doesnt apply.
iv. UPSHOT: Unintentionally omitted spouse, if proven, will be able to take intestate share or elective share.
b. UPC 2-301: Gets rid of is mentioned language. (a)(3) include other form of transfer in lieu of testamentary provision. Need intent for substitute
coverage. (Ts spouse takes from part not devised to kid(s) from prior marriage)
c. Lambeff (91): Dad abandons kid; want share. UPSHOT: Cts discretion gave them something, but other more b/c they needed it.
2. Rights of Descendents Omitted from Will
a. Pretermitted Children: Parents under no obligation to provide for kids, except in Louisiana. BUT, if mistakenly omitted are protected.
b. Gray (06): Married Divorced Removed from Will Remarried Not added back to will Son tries to object to amended disposition. Ct said under
(a)(2) son omitted, since other kids got nothing, but (a)(3) wasnt enough proof.
i. Omitted Child Statute: (a) allow omitted kid to receive their intestate share of estate unless 1 of following 3 exceptions applied: (1) if exclusion
from Will appeared to be intentional, (2) if T had 1+ kids living when Will was executed & devised entire estate to other parent, or (3) if transfer to
kid made outside Will is shown to have been intended as substitute for devise by Will.
ii. UPSHOT: Surrounding circumstances are looked at to see if kid is pretermitted or not (See above).
c. Protection of Children UPC 2-302 protects only those born or adopted after execution of Will. Some statues protect all kids.
i. Missouri-Type Statute: benefits kids not named or provided for in Will. Must appear from Will itself that omission was intentional, not by
mistake. No EE permitted.
ii. Massachusetts-type Statute: like Missouri-type, but permits EE.
Trusts: Creation, Types, and Characteristics
I. Introduction
A. Introduction: Trusts have less strict reqs than w/ Wills.
1. Legal Formalities: Trusts are often evidenced by written docs. Can be done by oral statements, except w/ prop (b/c of SoF) & testamentary trusts (must be
done in writing).
2. Vocabulary (Trust Res is trust prop)
a. Settlor/Grantor: person creats trust. Can also be trustee &/or bene at same time. If all 3, need more bene, so fiduciary duty to some1.
b. Trustee: person appointed to take care of trust (manager of trust) & has fiduciary duty to settlor. Has equitable duties to bene.
i. Can be individual, Corp, or settlor/grantor. Can even be bene, but there needs to be more than 1 of them.
ii. Legal obligations; silence isnt enough (aka if trustee isnt told). If theres silence, main trustee didnt accept position.
c. Bene: benefits from what trustee does w/ prop. Rights are equitable interest. Trustee has fiduciary duty to them. Can sue trustee.
d. Deed of Trust: appoints another as trustee; doesnt have to be in writing, but must appoint some1 else. (must be transfer or prop)
e. Declaration of Trust: doesnt have to be in writing & can appoint urself as trustee. (transfer of prop based on jurisd)
3. Many jurisds req title to be transferred to trustee. Serves as evidence of creation of trust. NY reqs transfer to trustee.
4. Types of Trusts (To be ack, trustee must have duty to perform. If it fails then reverts back to settlor or their heirs OR resulting trust)
a. Revocable Trust: used to avoid probate; made inter vivos w/ grantor retaining some power; has tax implications.
b. Marital Spouse Trust: used to benefit surviving spouse & avoid estate tax (caps at certain amount), can use Co as trustee.
c. Trusts for Incompetent or Minors: trustee does oversight & has fiduciary duty.
d. Dynastic Trust: weakness is Rule of Perpetuities.
e. Discretionary Trust: Protects against creditors of bene in some situations.
f. Charitable Trusts: used to help ppl & trustee manages trust & distributes it. Has no identifiable bene.
5. Rules: (1) Trustee, who is also bene, has to have another bene who theyd have fiduciary duty to; (2) Trust wouldnt fail for want of trustee; (3) If grantor &
trustee are same, dont need formal delivery of prop (do in NY). If theyre different, then formal delivery is req.
6. Main Qs: (1) was there intent to create trust? Language itself shows it?; (2) Was there trust prop? Was prop put in trust? ; (3) Are there ascertainable &
identifiable bene.s? (Pets dont count); (4) whether trust instrument was written? (When it has to be). If not, & had to be, then fails.
B. Creating Trust Intent to create trust: words must evidence for use & benefit of another.
1. Lux (72): Granny left prop to benefit grandkids. Ct said she intended prop to be held in trust for grandkids benefit.
g. UPSHOT: Intent to create trust can be seen through evidence of for use & benefit of another.
2. Jiminez (76): Granny put $$ in trust for grandkids & put son in it too. Son used money, knew it was for kids, & left them nothing.
h. UPSHOT: EE showing intent can be used to prove creation of trust.
3. Precatory Language: express wish & hope; not words for trust. Equitable Charge: gives something to A, subject to part to be paid to B.
4. Imperfect Gift vs. Gift in Trust: Outright gift, giver/donor has to deliver gift to donee. But gift in trust, not req to deliver, except in NY.
5. Hebrew U.: T wanted to leave library to skool & wife declared gift publically. Didnt use trust language, & never completed delivery.
i. UPSHOT: Ct can impose constructive delivery to correct failed gift (if actions were taken to begin process)
C. The Req of a Trust Res. Necessity of Trust Prop
1. Unthank (64): T had handwritten promise to Rippstein to pay her $200/month.
j. UPSHOT: Trust res must be identified (ascertainable) in order for trust to be created.
2. Resulting Trust: Arises by operation of law if trustee has ongoing duty. Goes back to settlors heirs. (maintains settlors intent w/ prop)
k. Equitable reversionary interest that arises by operation of law in 2 situations: (1) where express trust fails or makes incomplete disposition (Rest.(3d) of
Trusts 8); (2) was innocent purchaser is involved? (Rest. (3d) of Trusts 9)
3. Brainard (37): T orally declared profit of stock for mom, wife, & kids in 1927, but profits didnt come til 1928.
l. Why cant future profit themselves be trust res? UTC abolishes res req.
m. UPSHOT: Trust cant exist until trust res exists (in this case, res was profits, not tied to anything tangible)
4. Speelman (61): Had exclusive rights to make Musical. Promised 5% of future profit from play.
n. UPSHOT: Will recognize future profits as property interest b/c it was attached to prop (license); b/c was written in letter.
o. Rest.(3d) of Trusts: Need more than hope or expectation.
I Trust Beneficiaries
A. Introduction 4 Main Characteristics of Trust: (1) intent to create trust, (2) trust res, (3) trust bene.s, & (4) written instrument, if required.
1. Golden Rule: For private trusts, bene.s must be ascertainable. Charitable bene.s dont have to be ascertainable.
2. Clark (26): Testamentary trust that left prop in trust to friends. UPSHOT: Not trust b/c bene.s must be ascertainable-friends too speculative.
B. Pet Beneficiaries Searights Estate (1950): Trust to take care of dog (Trixie) w/ $1k to Hand. It would cover 4yrs & 57.5days.
1. UPSHOT: Dog not ascertainable bene. Makes honorary trust & if dont want to care for dog, then to heirs as resulting trust.
C. Writing Req
1. Other laws req instrument to be written such as SoF for transfer of land. Options then for such oral declaration of trust: O conveys land to X upon oral trust
to pay income to A for life & upon As death to B? (1) X retains land outright b/c SoF prevents enforcement of oral trust (CL Approach); (2) Resulting Trust
for benefit of O/Os heirs; (3) Constructive Trust for benefit of A & B. Most follow (3) b/c unjust enrichment, fraud, etc.
2. Olliffe (1881): T made Will & left residue to Rev & said to do what she told him to do w/ it (for charitable purposes).
a. Cts option in resolving:
i. Allow EE of Ts oral instruction to Wells & enforce terms of declaratory (oral) trust. Violates wills act- no ambiguity.
ii. No EE, gift outright to Wells pursuant to express bequest in Will. (inconsistent w/ intent of T)
iii. Allow EE to determine bene.s, pass prop to Wells pursuant to Will, but impose constructive trust for benefit of such bene.s. (Prevents unjust
enrichment to Wells).
iv. No EE re declaratory trust for bene.s, prop reverts back to Ts heirs as resulting trust.
b. Ct identifies 2 types of testamentary trusts in these scenarios: (Modern trend & Rest. dont distinguish b/w 2 & impose const trust)
i. Secret v. Semi-Secret Trusts: Secret on face looks like outright gift. EE ok. BUT, Semi-Secret on face not outright gift. EE not ok.
ii. Depends on jurisd if EE is allowed, equity here allows EE for this Ct. Other jurisd will say no EE, goes outright. Some will approach this prob in
equity, not under law of wills-EE rule doesnt apply to this b/c its equity analysis. Secret/semi-secret triggers equity & not wills analysis. Note:
Modern trend & Rest. doesnt distinguish semi-secret/secret & imposes constructive trust remedy.
I Revocable Trust (revocable inter vivos trusts = RIVT)
A. Introduction
1. 4 Main Will Substitutes Life Ins; Pension Accounts; Joint Accounts (Tenancies); RIVT. Settlor retains power over during life.
a. Indistinguishable from will in terms of what they do- give owner during life control of prop, name, change bene.s at any point, can revoke/cancel, etc.
At death becomes irrevocable.
2. Revocable Trusts Settlor & trustee generally diff (not in Farkas). On settlors death, trust assets distrib in accordance w/ IVT.
a. Issue: its testamentary disposition, but not consistent w/ wills formalities- execution reqs not met in RIVT. No present interest given to bene -interest
only vests at death. Modern Law recognizes RIVTs.
3. Farkas (55): T retained control over trust (stock 4 different occasions) & put in trust for Williams.
a. UPSHOT: If T gave up enough control & has fiduciary duties to some1, then trust was created.
4. Pilafas (92): Lost will & trust- does lost will doctrine apply to trusts?
a. UPSHOT: Trust needs written notice that ure revoking it (can only terminate trust instrument, based on terms)
5. Reiser (79): T put interest in trust & residuary of will in trust, estate didnt have assets to pay loan. UPSHOT: If settlor retains power to revoke, creditors
can reach trust during Ts life (self-settled trust) & after death b/c of public policy.
I Pour Over Wills
A. Whats pour over will? Probate & nonprobate assets into trust made during life. Single receptacle. Avoids will formalities.
B. UTATA & UTC: (1) UTATA allows pour over to trusts created b4, concurrent, or after wills execution (combining incorp by reference & indep signif theories).
Trust could be amended if trust executed b4 Will. No res req until death. ; (2) UPC (essentially identical) allows pour over permitted for trusts
created during lifetime, or at death via doc executed b4, concurrent or after execution of will. No trust res needed.
C. Clymer (85): UPSHOT: H bene of IVT, divorced, so Will disposition to H is invalid, therefore H trust interest also invalid (residue to trust).
I Discretionary Trusts
A. Trust classification (Not mutually exclusive) Revocable v. Irrevocable; Private v. Charitable; Inter Vivos v. Testamentary
1. Mandatory v. Discretionary Mandatory: must follow specific scheme set out in trusts language.
a. Discretionary: Trustee has discretion over distribution based on trust terms.
i. Types: (1) spray, (2) discretionary support trust (a) purely discretionary & w/o ascertainable std or (b) w/ ascertainable std.
B. Trustee Discretion Trustee has some discretion b/w income & principle (possible issues: unhappy bene, liability, balance interest to avoid liability)
C. Marsman (91): T made testamentary trust for Cappy for support. Trustee paid him $300 1x. Cappy took out loan for house & had to give to daughter, so she can
maintain it. Trustee has duty to inquiry (trustee of support trust must inquire about needs & circumstances of bene) & duty to pay principal (need to assess
issue & distribute money based on that).
1. UPSHOT: In discretionary support trust, trustee has duty of inquiry & duty to pay principal pursuant to trust instrument.
D. Exculpatory Clause (exoneration clause)
1. Excuses trustee for liability for willful neglect of default Looked down on & heavily disfavored. NY rejects this.
2. NY- attempted grant of immunity to testamentary trustee for failure to exercise rable care is deemed contrary to pub policy & void.
E. Extended Discretion If trustee has simple discretion, Cts will not interfere w/ their judgment so long as they act rably & in good faith.
1. When instrument purports to free trustee from some or all of these limitations by use of adjectives such as sole, absolute, or uncontrolled, problems in
construction may arise. sole, absolute, or uncontrolled-in reality not absolute, Ct draw on equity to overturn trustees decision.
F. Mandatory Arbitration Clause Not always enforced.
G. Rights of Benes Creditors Rights of bene.s: also extends to rights of creditors (more on discretionary trusts & spendthrift trusts)
1. To determine what rights creditors have to trust assets, must first examine what rights bene.s have in relation to those assets. W/o these special rules, bene
would have complete access to trust asset.
H. General Rule for Trusts: Generally, (unless exceptions/limitations) bene is free to alienate/encumber assets in trust set up for their benefit. B/c bene can reach
assets, creditor can too. Chip in general rule is discretion on behalf of trustee, or if settlor puts in spendthrift clause.
I. Categorizing Trusts Categorizing Bene & Creditor Rights
1. Overview Rights of Bene & in turn Creditor
a. (1) Mandatory Trust? Creditors can reach amounts that must be paid out. Note: Effect of spendthrift clause
b. (2) Purely discretionary trust? Cut-off procedure (creditor cant compel trustee to make pay, but if does, $$ go to creditor not bene)
c. (3) Discretionary Trust? Note: Child support, creditor that provides necessaries. Some say for alimony also.
J. Rest. & UTC: Does away w/ distinction b/w purely discretionary trust & discretionary support trust, but result is same as traditional rules.
1. Rest: w/ any discretion to trustee, creditor can receive. Rest. context, creditor can compel.
2. UTC: w/ trustee discretion, creditor cant receive unless one of exceptions apply.
I Spendthrift Trusts
A. Introduction: For most part are boilerplate clauses. In NY, all trusts are spendthrift w/ respect to income. England doesnt allow this.
1. Protects trusts from bene.s & their creditors. bene.s cant assign their interest under spendthrift trusts.
2. Practical Effects are that trustee cant be forced to pay creditors or bene.s. Bene.s cant assign interest.
B. Scheffel (01): P wants D to pay tort damages through use of trust assets. Ct said P cant reach it b/c trust set up in way that creditors cant.
1. UPSHOT: Ct doesnt draw distinction b/w type of creditors, only looked at type of trust.
C. Shelley (60): Ds son & ex-wife want to attach trust to get alimony & child support. Trust had clause to give $$ to kids in emergency.
1. Ct said spendthrift is ineffective to insulate from alimony & child support, based on Rest.
2. UPSHOT: Ex-wives cant take in discretionary part BUT, kids CAN take based on trust instructions, since D abandoned kids (emergency)
I Modification and Termination
A. Modification of Trusts
1. Gen principles Rev Trust can be modified if settlor consent. Irrevocable Trust (usually testamentary), can be modified if settlor & all bene.s agree.
2. Claflin Doctrine: Trust cant be term or mod prior to time fixed for term even if all bene.s consent if term/mod would be contrary to material purpose of
3. Stuchell (90): T testamentary trust left remainder to 4 grandkids, 1 was handicapped, other 3 want special needs trust for him so he doesnt get outright & is
still eligible for state benefits. Ps argue unforeseen circumstances-exception to Claflin.
a. UPSHOT: Ct said cant modify/terminate solely for advantages of bene.s. Must be absolutely necessary & w/in trust purpose.
4. Exceptions to Claflin Doctrine
a. UTC differentiates deviation & modification; b/w administration & dispositive changes.
b. Cts are more likely to make administrative changes & less likely to do dispositive changes.
c. UTC- permits mod/term, of administrative or dispositive, if doing so would further purpose of trust & circumstances werent anticipated by T.
1. UTC: Ct can modify admin terms in trust if continuation of trust on its existing terms would be impracticable or wasteful or impair trusts administration.
Upon termination, trustee shall distribute trust prop in matter consistent w/ purposes of trust. If changed circs doesnt go to challenging purpose of trust, can
only make changes administratively. But if very purpose is at issue, Ct can change distribution itself or interest.
5. Trust Protector: has no fiduciary duties, but does check trustee. Has power to do certain things.
B. Termination of Trusts (need settlor agreement or all bene.s to agree)
1. Claflin rule: W/o consent of settlor, cant terminate trust b4 time set for termination-settlor intended trustee to manage as intermediary, not for bene to get
outright-unless all bene.s consent & trust purpose has been fulfilled. Issues that arise: 1) has material purpose of trust been satisfied? 2) all bene.s b4 Ct?
1. Usually no termination if: spendthrift clause, discretionary trust, support trust, delays receipt of principal until particular age.
2. Brown (87): T set up trust to educate nephews kids & after for him & his wife to live in style & manner theyre accustomed (income & principal to be
used). After principal goes to kids. Everyone agreed to get trust terminated & go to nephew & wife.
a. UPSHOT: Trust cant be terminated unless material purposes have been satisfied.
C. Trustee Removal Settlor, co-trustee, or bene can request trustee removal if: (1) Trustee has materially breached trust ; (2) Theres lack of cooperation among
cotrustees that substantially impairs administration of trust ; (3) Ct determines that trustee removal is in best interest of trust: Due to substantial change in
circumstances; Material purpose isnt violated.